Takes of Marine Mammals Incidental to Specified Activities; Pile-Driving and Renovation Operations on the Trinidad Pier by the Cher-Ae Heights Indian Community of the Trinidad Rancheria in Trinidad, CA, 47155-47176 [2011-19809]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 76, Number 150 (Thursday, August 4, 2011)]
[Notices]
[Pages 47155-47176]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-19809]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XW30


Takes of Marine Mammals Incidental to Specified Activities; Pile-
Driving and Renovation Operations on the Trinidad Pier by the Cher-Ae 
Heights Indian Community of the Trinidad Rancheria in Trinidad, CA

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice; Issuance of an Incidental Take Authorization (ITA).

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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA) 
regulation, notification is hereby given that NMFS has issued an 
Incidental Harassment Authorization (IHA) to the Cher-Ae Heights Indian 
Community of the Trinidad Rancheria (Trinidad Rancheria) to take small 
numbers of marine mammals, by Level B harassment, incidental to pile-
driving and renovation operations for the Trinidad Pier Reconstruction 
Project in Trinidad, California.

DATES: Effective August 1, 2011 through January 31, 2012.

ADDRESSES: A copy of the IHA is available by writing to P. Michael 
Payne, Chief, Permits, Conservation, and Education Division, Office of 
Protected Resources, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910 or by telephoning the contacts listed 
here.

[[Page 47156]]

    A copy of the application containing a list of the references used 
in this document may be obtained by writing to the address specified 
above, telephoning the contact listed below (see FOR FURTHER 
INFORMATION CONTACT), or visiting the Internet at: https://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. The following 
associated documents are also available at the same internet address: 
``Biological Assessment, Trinidad Pier Replacement, Cher-Ae Heights 
Indian Community of the Trinidad Rancheria, May 2009'' and 
``Environmental Assessment for Issuance of an Incidental Harassment 
Authorization for Cher-Ae Heights Indian Community of the Trinidad 
Rancheria's Trinidad Reconstruction Project in Trinidad, California.'' 
Documents cited in this notice, may be viewed by appointment, during 
regular business hours, at the aforementioned address.

FOR FURTHER INFORMATION CONTACT: Howard Goldstein or Jolie Harrison, 
Office of Protected Resources, NMFS, 301-427-8401.

SUPPLEMENTARY INFORMATION:

Background

    Section 101(a)(5)(D) of the MMPA (16 U.S.C. 1361(a)(5)(D)) directs 
the Secretary of Commerce (Secretary) to allow, upon request, the 
incidental, but not intentional, taking of marine mammals for a period 
of not more than one year by U.S. citizens who engage in a specified 
activity (other than commercial fishing) within a specified 
geographical region if certain findings are made and, if the taking is 
limited to harassment, a notice of a proposed authorization is provided 
to the public for review.
    Authorization for the incidental taking of small numbers of marine 
mammals shall be granted if NMFS finds that the taking will have a 
negligible impact on the species or stock(s), and will not have an 
unmitigable adverse impact on the availability of the species or 
stock(s) for subsistence uses (where relevant). The authorization must 
set forth the permissible methods of taking, other means of effecting 
the least practicable impact on the species or stock and its habitat, 
and requirements pertaining to the mitigation, monitoring and reporting 
of such takings. NMFS has defined ``negligible impact'' in 50 CFR 
216.103 as ``* * * an impact resulting from the specified activity that 
cannot be reasonably expected to, and is not reasonably likely to, 
adversely affect the species or stock through effects on annual rates 
of recruitment or survival.''
    Section 101(a)(5)(D) of the MMPA establishes a 45-day time limit 
for NMFS's review of an application followed by a 30-day public notice 
and comment period on any proposed authorizations for the incidental 
harassment of small numbers of marine mammals. Within 45 days of the 
close of the public comment period, NMFS must either issue or deny the 
authorization.
    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as:

any act of pursuit, torment, or annoyance which (I) Has the 
potential to injure a marine mammal or marine mammal stock in the 
wild [Level A harassment]; or (ii) has the potential to disturb a 
marine mammal or marine mammal stock in the wild by causing 
disruption of behavioral patterns, including, but not limited to, 
migration, breathing, nursing, breeding, feeding, or sheltering 
[Level B harassment].

16 U.S.C. 1362(18).

Summary of Request

    On November 3, 2009, NMFS received a letter from the Trinidad 
Rancheria, requesting an IHA. After addressing comments from NMFS, a 
revised IHA application was submitted on July 23, 2010. On May 18, 
2011, NMFS published a notice in the Federal Register (76 FR 28733) 
disclosing the effects on marine mammals, making preliminary 
determinations and including a proposed IHA. The notice initiated a 30 
day public comment period.
    The requested IHA would authorize the take, by Level B (behavioral) 
harassment only, of small numbers of Pacific harbor seals (Phoca 
vitulina richardsi), California sea lions (Zalophus californianus), and 
Eastern Pacific gray whales (Eschrichtius robustus) incidental to pile-
driving and renovation operations on the Trinidad Pier. The Trinidad 
Pier has served the Trinidad Community for decades and continues to be 
one of the marine economic generators for the area. This project will 
not only address the structural deficiencies of the aged pier, but will 
completely remove the presence of creosote and other wood preservatives 
from Trinidad Bay and eliminate non-point source run-off with the 
construction of the new pier. The pile-driving and renovation 
operations will take place during August, 2011 to January, 2012, in 
Trinidad, California. Additional information on the Trinidad Pier 
Reconstruction Project is contained in the application and Biological 
Assessment (BA), which is available upon request (see ADDRESSES).

Description of the Specified Activities

    The Trinidad Pier, located on Trinidad Bay, is an antiquated 
structure that requires reconstruction in order to maintain public 
safety and to redress certain environmental deficiencies in the 
existing structure. The 165 m (540 ft) long pier is located on 
tidelands granted by the State of California to the City of Trinidad 
and leased by the Trinidad Rancheria. The project area consists of the 
pier (0.31 acres) and a nearby staging area (0.53 acres). The existing 
pier was constructed in 1946 to serve commercial fishing and 
recreational uses. Since that time, the creosote-treated wood piles 
which support the pier, as well as the wood decking, have deteriorated 
and are proposed to be replaced by cast-in-steel-shell (CISS) concrete 
piles and pre-cast concrete decking, respectively. This will improve 
the safety of the pier. Existing utilities that will require 
replacement include electrical water, sewer, and phone. Additional dock 
amenities that will be replaced including lighting, railing, four 
hoists, three sheds, a saltwater intake pipe used by Humboldt State 
University's (HSU) Telonicher Marine Laboratory, and a water quality 
sonde utilized by the Center for Integrative Coastal Observation, 
Research, and Education. The construction schedule is from August 1, 
2011, to May 1, 2012, however the pile-driving and removal activities 
potentially resulting in incidental take of marine mammals will occur 
from August 1, 2011, through January 31, 2012.

Background

    The Trinidad Pier is the northernmost oceanfront pier in California 
and has been used for commercial and recreational purposes over the 
last 50 years. Trinidad harbor and pier serve a fleet of commercial 
winter crab fishermen and year-round water angling for salmon, and 
nearshore/finfish species. Trinidad Pier was first built by Bob 
Hallmark in 1946. Since that time only minor maintenance activities 
have occurred on the pier. Today, Trinidad's economy is based on 
fishing and tourism and the pier supports these activities. The pier 
also provides educational opportunities by accommodating HSU's 
Telonicher Marine Lab's saltwater intake pipe, and the California 
Center of Integrated Technology's (CICORE) water quality sonde.
    Currently, the Trinidad Rancheria plays an important role in the 
economic development of the Trinidad area through three main business 
enterprises,

[[Page 47157]]

one of which is the Seascape Restaurant and the pier. The Cher-Ae 
Heights Indian Community of the Trinidad Rancheria is a federally-
recognized tribe composed of descendants of the Yurok, Weott, and 
Tolowa peoples. In 1906, the Trinidad Rancheria was established by a 
U.S. congressional enactment, and a congressional action authorized the 
purchase of small tracts of land for landless homeless California 
Indians. In 1908, through this Federal authority, 60 acres of land was 
purchased on Trinidad Bay to establish the Trinidad Rancheria. In 1917, 
the Secretary of the Interior formally approved the Trinidad Rancheria 
as a Federally Recognized Tribe.
    The community began developing in the 1950's. In January, 2000, the 
Trinidad Rancheria purchased the Trinidad Pier, harbor facilities, and 
the Seascape Restaurant. The Trinidad Rancheria leases a total area of 
14 acres in Trinidad Bay from the City of Trinidad. The Trinidad 
Rancheria currently operates the pier, and upland improvements 
including a boat launch ramp and the Seascape Restaurant. Funds for 
permitting and designs of the pier were granted to the Trinidad 
Rancheria by the California State Coastal Conservancy.
    The purpose of the Trinidad Pier Reconstruction Project is to 
correct the structural deficiencies of the pier and improve pier 
utilities and safety for the benefit of the public, and indirectly 
improve the water quality conditions and provide additional habitat for 
the biological community in the area of special biological significance 
(ASBS). Currently, it is difficult to ensure the continued safety of 
the pier due to excessive deterioration of the creosote-treated Douglas 
fir piles and the pressure treated decking.

Pier Construction Overview

    Summary plans for the pier and staging area are presented in 
Appendix A of the IHA application. Pier improvements will replace at a 
one-to-one ratio, approximately 1,254 m\2\ (13,500 ft\2\) of the pre-
cast concrete decking. In addition, the project includes installation 
of 115 concrete piles (and removal of 205 piles) including batter and 
moorage piles (45.7 cm or 18 inches [in] in diameter), four hoists, 
standard lights, guardrail, and dock utility pipes including water, 
power, and telephone. A new stormwater collection system will also be 
incorporated into the reconstructed pier design. The new CISS concrete 
piles will be separated at 1.5 m (5 ft) intervals along 7.6 m (25 ft) 
long concrete bents. A total of 22 bents separated 7.6 m (25 ft) apart 
shall be used. The decking of the new pier will be constructed of pre-
cast 6.1 m (20 ft) long concrete sections. The new pier will be 164.6 m 
(540 ft) long and 7.3 to 7.9 m (24 to 26 ft) wide, corresponding to the 
existing footprint.
    A pile bent will be installed at the existing elevation of the 
lower deck to provide access to the existing floating dock. The 
existing stairs to the lower deck will be replaced with a ramp that is 
ADA compliant. The decking of the pier will be constructed at an 
elevation of 6.4 m (21 ft) above Mean Lower Low Water (MLLW). The top 
of the decking will be concrete poured to create a slope for drainage 
and to incorporate a pattern and a color into the concrete surface in 
order to provide an aesthetically pleasing appearance. An open 
guardrail, 1.1 m (3.5 ft) in height shall be constructed of tubular 
galvanized steel rail bars (approximately 1.9 cm [\3/4\ in] diameter) 
uniform in shape throughout the length of the pier. Lighting will be 
installed in the decking (and railing in the landing area) along the 
length of the pier and will be focused and directed to minimize 
lighting of any surfaces other than the pier deck.
    Currently there are four hoists on the pier. Three of the hoists 
are used to load and unload crab pots from the pier and the fourth 
hoist located at the end of the pier is suited to load and unload 
skiffs. The hoists are approximately 30 years old and may have had the 
Yale motors replaced since the time they were installed. The hoists 
shall be re-installed at points corresponding to their current location 
and their current duties. All design specifications shall conform to 
the Uniform Building Code.

Pier Demolition Methods

    Removal of the existing pier and construction of the new pier shall 
occur simultaneously. Construction shall begin from the north (shore) 
end of the pier. All pier utilities and structures shall first be 
removed. Utilities to be removed include water, electrical, power and 
phone lines, temporary bathroom, ladders, and pier railing. Structures 
to be removed include four hoists, two wood sheds, HSU's 20 horse-power 
(hp) (14.9 kiloWatt [kW]) pump and saltwater intake pipes, CICORE's 
water quality sonde, and a concrete bench. Then the existing pressure 
treated decking, joists, and bent beams shall be removed and 
transported by truck to the upland staging area for temporary storage.
    All existing piles located in the section of pier being worked on 
(active construction area) will then be removed by vibratory 
extraction, unless some are broken in the process. Vibratory extraction 
is a common method for removing both steel and timber piling. The 
vibratory hammer is a large mechanical device mostly constructed of 
steel that is suspended from a crane by a cable. The vibratory hammer 
is deployed from the derrick and positioned on the top of the pile. The 
pile will be unseated from the sediment by engaging the hammer and 
slowly lifting up on the hammer with the aid of the crane. Once 
unseated, the crane will continue to raise the hammer and pull the pile 
from the sediment. When the bottom of the pile reaches the mudline, the 
vibratory hammer will be disengaged. A choker cable connected to the 
crane will be attached to the pile, and the pile will be lifted from 
the water and placed upland. This process will be repeated for the 
remaining piling. Extracted piling will be stored upland, at the 
staging area, until the piles are transferred for upland disposal. Each 
such extraction will require approximately 40 minutes (min) of 
vibratory hammer operation, with up to five piles extracted per day (a 
total of 3.3 hours per day). Operation of the vibratory hammer is the 
primary activity within the pier demolition group of activities that is 
likely to affect marine mammals by potentially exposing them to both 
in-air (i.e., airborne or sub-aerial) and underwater noise.
    Douglas fir pilings are prone to breaking at the mudline. In some 
cases, removal with a vibratory hammer is not possible because the pile 
will break apart due to the vibration. Broken or damaged piling can be 
removed by wrapping the individual pile with a cable and pulling it 
directly from the sediment with a crane. If the pile breaks between the 
waterline and the mudline it will be removed by water jetting. Water 
jetting would potentially be performed by divers working around the 
base of the piles and is not expected to have the potential to result 
in incidental take of marine mammals.
    A floating oil containment boom surrounding the work area will be 
deployed during creosote-treated timber pile removal. The boom will 
also collect any floating debris. Oil-absorbent materials will be 
deployed if a visible sheen is observed. The boom will remain in place 
until all oily material and floating debris has been collected. Used 
oil-absorbent materials will be disposed of at an approved upland 
disposal site. The contractor shall also follow Best Management 
Practices (BMPs): NS-14--Material Over Water, NS-15--Demolition 
Adjacent to Water, and WM-4--Spill Prevention and Control listed in the 
California

[[Page 47158]]

Stormwater Quality Association (CASQA) Handbook.
    The existing Douglas-fir piles are creosote treated. The depth of 
creosote penetration into the piles varies from 0.6 to 5.1 cm (0.25 to 
2 in). Creosote is composed of a mixture of chemicals that are 
potentially toxic to fish, other marine organisms, and humans. 
Polycyclic aromatic hydrocarbons (PAH), phenols and cresols are the 
major chemicals in creosote that can cause harmful health effects to 
marine biota. The replacement of the creosote treated piles with CISS 
concrete piles is expected to eliminate potential contamination of the 
water column by PAH, phenols and cresols from the existing treated wood 
piles.
    All removed piles shall be temporarily stored at the upland staging 
areas until all demolition activities are complete (approximately 6 
months). Following the cessation of demolition activities, the creosote 
treated piles will be transported by the Contractor to Anderson 
Landfill in Shasta County. This landfill is approved to accept 
construction demolition, wood wastes, and non-hazardous/non-designated 
sediment.
    The pressure treated 2x4 in Douglas-fir decking will also be stored 
at the staging area until demolition is complete. The partially 
pressure treated decking and railing may be reused and will be kept by 
the Trinidad Rancheria for potential future use.

Pile Installation

    Design--Two 45.7 cm (18 in) diameter battered piles, which are 
designed to resist lateral load, will be located on each side of the 
pier at 12:1 slopes. Three vertical piles, which are designed to 
support 50 tons of vertical loads, will be located between the battered 
piles separated 1.5 m (5 ft) apart.
    Overview--New piles will be installed initially from shore and 
then, as construction proceeds, from the reconstructed dock. Following 
removal of each existing pile, steel casings will be vibrated (using a 
vibratory hammer) to a depth of approximately 0.8 m (2.5 ft) above the 
top elevation of the proposed pile (7.6 to 10.7 m [25 to 35 ft] below 
the mudline). The steel shell of 1.9 cm (\3/4\ in) thickness shall 
extend from above the water surface to below the upper layer of 
sediment, which consists of sand, into the harder sediment, which 
consists mostly of weathered shale and sandstone. The steel shell will 
be coated with polymer to protect the casings from corrosion. The steel 
shell will be coated with polymer to protect the casings from 
corrosion. The steel shell shall be used to auger the holes and will 
then be cleaned and concrete poured using a tremie to seal the area 
below the shell. The shell will then be dewatered and a steel rebar 
cage installed prior to pouring concrete to fill the shell. These steps 
are described in further detail below.
    Pile Excavation--Following installation of the steel casing, each 
hole will be augered to the required pile depth of 7.6 to 10.7 m (25 to 
35 ft) below the mudline. An auger drill shall be used to excavate the 
sediment and rock from the steel shell. Geotechnical studies (Taber, 
2007) indicate that the material encountered in the test borings can be 
excavated using typical heavy duty foundation drilling equipment. 
Driving the new piles and augering the holes are the primary activities 
within the pile installation group of activities most likely to result 
in incidental harassment of marine mammals by potentially exposing them 
to underwater and in-air noise.
    Steel casing member of 1.9 cm (\3/4\ in) thickness shall be used to 
form the CISS concrete foundation columns in underwater locations. In 
this technique, inner and outer casings are partially imbedded in the 
ground submerged in the water and in concentric relationship with one 
another. The annulus formed between the inner and outer casings is 
filled with water and cuttings, while the inner casing is drilled to 
the required depth, and the sediment is removed from the core of inner 
steel casing. Following removal of the core, the outer casing is left 
in place as the new pile shell.
    The sediment and cuttings excavated shall be temporarily stockpiled 
in 50 gallon drums (or another authorized sealed waterproof container) 
at the staging area until all excavations are complete and then 
transferred for upland disposal at the Anderson Landfill or another 
approved upland sediment disposal site.
    The existing piles extend to approximately 6.1 m (20 ft) below the 
mudline. Each one of the existing 0.3 m (1 ft) diameter pile has 
displaced 0.4 m\3\ (15.7 ft\3\) of sediment. There are approximately 
205 wood piles to be removed. The total amount of sediment displaced by 
the existing piles is approximately 91.7 m\3\ (3,238.4 ft\3\). Each of 
the proposed CISS piles requires the displacement of approximately 1.5 
m\3\ (53 ft\3\) of sediment. There are 115 CISS piles to install. A 
total of approximately 172 m\3\ (6,074 ft\3\) of sediment would have to 
be removed in order to auger 115 holes to a depth of 9.1 m (30 ft) 
below the mudline. It is estimated that 7.6 to 76.5 m\3\ (268.4 to 
2,701.5 ft\3\) would have to be removed during pile installation. Many 
new holes will be augered in the location of existing piles where they 
overlap. As a result, less sediment will be required to be removed than 
would be required for the construction of a new pier, however, the 
exact location and penetration of the old piles is not recorded and 
will be determined during reconstruction activities. Therefore, a range 
of quantity of material to be removed is specified. Existing holes 
created by old wood piles removed and that do not overlap with the 
location of holes augered for the new piles will collapse and naturally 
fill with adjacent sediment.
    Most of the sediment excavated is expected to be in the form of 
cuttings if the hole is augered and/or drilled at a location of exiting 
piles. Sediment removed from the inner core during augering shall be 
mostly dry due to the compression created in the core during augering. 
Approximately fifty 50-gallon drums will be used to store the cuttings 
and sediment prior to disposal upland. The contractor shall implement 
BMPs WM-3--Stockpile Management, WM-4--Spill Prevention and Control, 
and WM-10--Liquid Waste Management listed in the CASQA Handbook (see 
the handbook for details at: https://www.cabmphandbooks.com/Development.asp).
    Concrete Seal Installation--A tremie (i.e., a steel pipe) will be 
used to seal the bottom 0.9 m (3 ft) of the hole below the bottom of 
the steel shell and above the ground. Before the tremie seal is poured, 
the inside walls of the pile will be cleaned by brushing or using a 
similar method of removing any adhering soil or debris in order to 
improve the effectiveness of the seal. A ``cleaning bucket'' or similar 
apparatus will be used to clean the bottom of the excavation of loose 
or disrupted material.
    The tremie is a steel pipe long enough to pass through the water to 
the required depth of placement. The pipe is initially plugged until 
placed at the bottom of the holes in order to exclude water and to 
retain the concrete, which will be poured. The plug is then forced out 
and concrete flows out of the pipe to its place in the form without 
passing through the water column. Concrete is supplied at the top of 
the pipe at a rate sufficient to keep the pipe continually filled. The 
flow of concrete in the pipe is controlled by adjusting the depth of 
embedment of the lower end of the pipe in the deposited concrete. The 
upper end may have a funnel shape or a hopper, which facilitates 
feeding concrete to the tremie. Each concrete

[[Page 47159]]

seal is expected to cure within 24 to 48 hours.
    Dewatering Methodology--After the tremie seal has been poured, the 
water will be pumped out of the steel shells, which will act as a 
cofferdam. Pumping within the excavation at the various footings may be 
required to maintain a dewatered work area.
    The contractor shall test the pH of the water in each casing one 
day following pouring of the tremie seal to insure that the pH of the 
water did not change from the ambient pH. The water shall then be 
pumped into 50-gallon drums and transported to the staging area for 
discharge through percolation to eliminate solids. Should the pH of the 
water change from ambient pH, then the contractor shall haul the water 
to the Eureka Wastewater Treatment Plant for treatment prior to 
discharge. The contractor is expected to dewater a volume of 
approximately 450 gallons (1,720 L) each day during pile installation. 
For the installation of 115 piles, approximately 49,500 gallons 
(197,800 L) will be dewatered and discharged at the appropriate 
location at the staging area. Percolation rates will be verified prior 
to discharge of the ocean water at the designated location at the 
staging area, but are not expected to be prohibitive due to the sandy 
texture of the soil. The Contractor shall implement BMP WM-10 Liquid 
Waste Management as listed in the CASQA Handbook. Liquid waste 
management procedures and practices are used to prevent discharge of 
pollutants to the storm drain system or to watercourses as a result of 
the creation, collection, and disposal of non-hazardous liquid wastes. 
WM-10 provides procedures for containing liquid waste, capturing liquid 
waste, disposing liquid waste, and inspection and maintenance.
    Completion--Following dewatering of the steel shells, steel rebar 
cages shall be inserted into each shell. Ready-mix concrete placed into 
the drilled piers shall be conveyed in a manner to prevent separation 
or loss of materials. The cement-mixer truck containing the concrete 
shall be located on land adjacent to the north end of the pier. The 
concrete shall be pumped to the borings through a pipe (at least 0.9 cm 
[\3/4\ in] thick) that will span the length of the pier. When pouring 
concrete into the hole, in no case shall the concrete be allowed to 
freefall more than 1.5 m (5 ft). Poured concrete will be dry within at 
least 24 hours and completely cured within 30 days.
    A concrete washout station shall be located in the staging area at 
the designated location. The contractor shall implement BMP, WM-8--
Concrete Waste Management, as listed in the CASQA Handbook to prevent 
discharge of liquid or solid waste.

Pier Deck Construction

    Following the installation of the concrete piles, pre-cast concrete 
bent caps measuring 7.6m (25 ft)-long shall be installed on top of each 
row of pilings. The concrete bents act to distribute the load between 
the piles and support the pier.
    Pre-cast 6.1m (20 ft)-long concrete sections shall be used for the 
decking. An additional layer of concrete shall be poured following 
installation of the precast sections. The layer of concrete will allow 
the decking of the pier to be sloped to the west for drainage purposes 
and to create an aesthetically pleasing decking. The surface of the 
decking will be colored and contain an earth tone pattern to match the 
surrounding environment.

Utilities

    Utilities located on the pier will require location during 
construction and replacement following construction of the pier 
footings and decking. Utilities include:
    Power: A 2 in PG&E power line that is currently attached to the 
west side of the pier and PG&E electrical boxes located along the west 
side of the pier.
    Sewer: Currently there are no sewer pipes on the pier. Visitors to 
the pier are served by a temporary restroom located on the south side 
of the pier. No direct sewer discharge is allowed in the ASBS.
    New utilities installed include water, phone, and electrical. New 
pier utilities will be constructed along the east and west side of the 
pier and will be enclosed within concrete utility trenches. Water pipes 
shall be routed along both sides of the pier to several locations along 
the pier. Phone lines shall be routed along the west side of the pier. 
All electrical switches will be located in one central box towards the 
west end of the pier by the loading and unloading landings location.
    Lighting installed along the pier shall be designed to improve 
visibility and safety. The lighting will be embedded in the decking and 
railing of the pier to minimize light pollution from the pier. Lighting 
shall be designed to minimize light pollution by preventing the light 
from going beyond the horizontal plane at which the fixture is 
directed. Currently, there are lighting poles on the pier. The proposed 
lighting on the pier will be embedded on the west and east side of the 
decking separated approximately 7.6 m (25 ft) throughout the length of 
the pier. The lighting fixtures will have cages for protection matching 
the color of the railing. In addition, on the south side of the pier, 
lighting will be installed in the railing to provide lighting for the 
working area on the deck of the pier.
    Fish cleaning does not occur at the pier. This activity was 
formerly pursued by recreational users and was discontinued in 2006 due 
to water quality concerns.

Drainage

    There is currently no runoff collection system on the pier. Runoff 
drains from the existing pier directly into the ASBS. A storm water 
outfall for the City of Trinidad is located near the base of the pier.
    The pier decking shall be sloped to the west in order to direct 
runoff from the pier to the stormwater collection pipe. The runoff 
shall be routed along the west side of the pier and conveyed by gravity 
to a new upland manhole and storm chamber containing treatment media. 
All stormwater will be infiltrated within the storm chamber; there will 
be no discharge from the system. See Appendix C, drawings C-5 to C-8 of 
the IHA application, for details of the conveyance and treatment 
system. The pier-deck construction, utility replacement, and drainage 
improvements are anticipated to result in discountable effects to 
marine mammals.

BMPs

    Pier Demolition Methods:
     Waters shall be protected from incidental discharge of 
debris by providing a protective cover directly under the pier and 
above the water to capture any incidental loss of demolition or 
construction debris.
     A floating oil containment boom surrounding the work area 
will be used during the creosote-treated timber pile removal. The boom 
will also collect any floating debris. Oil-absorbent materials will be 
employed if a visible sheen is observed. The boom will remain in place 
until all oily material and floating debris has been collected and 
sheens have dissipated. Used oil-absorbent materials will be disposed 
of at an approved upland disposal site.
     All removed piles shall be temporarily stored at the 
upland staging areas until all demolition activities are complete 
(approximately 6 months).
     Following the cessation of demolition activities, the 
creosote treated piles will be transported by the Contractor to an 
upland landfill approved to accept such materials.
     The pressure treated 2 x 4 in Douglas fir decking will 
also be stored in the staging area until demolition is

[[Page 47160]]

complete. The partially pressure treated decking and railing may be 
reused and will be kept by the Trinidad Rancheria for further use.
     The contractor shall also follow BMPs: NS-14--Material 
Over Water, NS-15--Demolition adjacent to Water, and WM-4--Spill 
Prevention and Control listed in the CASQA Handbook.
    Pile Installation:
     The sediment and cuttings excavated shall be temporarily 
stockpiled in 50 gallon (189 L) drums (or another authorized sealed 
waterproof container) at the staging area until all excavations are 
complete and then transferred for upland disposal at the Anderson 
Landfill or another approved upland sediment disposal site.
     The contractor shall implement BMPs WM-3--Stockpile 
Management, WM-4--Spill Prevention and Control, and WM-10--Liquid Waste 
Management listed in the CASQA Handbook.
     The contractor shall test the pH of the water in each 
casing one day following pouring of the tremie seal to insure that the 
pH of the water did not change by more than 0.2 units from the ambient 
pH. The water shall then be pumped into 50-gallon drums and transported 
to the staging areas for discharge through percolation to eliminate 
solids. Should the pH of the water change from ambient pH, then the 
contractor shall haul the water to the Eureka Wastewater Treatment 
Plant for treatment prior to discharge.
     The contractor shall implement BMP WM-10 Liquid Waste 
Management as listed in the CASQA Handbook. Liquid waste management 
procedures and practices are used to prevent discharge of pollutants to 
the storm drain system or to watercourses as a result of the creation, 
collection, and disposal of non-hazardous liquid wastes. WM-10 provides 
procedures for containing liquid waste, capturing liquid waste, 
disposing liquid waste, and inspection and maintenance.
     A concrete washout station shall be located in the staging 
area at the designated location. The contractor shall implement BMP, 
WM-8--Concrete Waste Management, as listed in the CASQA Handbook to 
prevent discharge of liquid or solid waste.
    Pier Construction:
     No concrete washing or water from concrete will be allowed 
to flow into the ASBS and no concrete will be poured within flowing 
water.
     Waters shall be protected from incidental discharge of 
debris by providing a protective cover directly under the pier and 
above the water to capture any incidental loss of demolition or 
construction debris.
    Utilities:
     Lighting will be embedded in the decking and railing of 
the pier to minimize light pollution from the pier. Lighting shall be 
designed to minimize light pollution by preventing the light from going 
beyond the horizontal plain at which the fixture is directed so the 
light is directed upwards.
    Drainage:
     The pier decking shall be sloped to the west in order to 
direct runoff from the pier to the stormwater collection pipe. The 
runoff shall be routed along the west side of the pier and conveyed by 
gravity to a new upland manhole and storm chamber containing treatment 
media. Drainage from the storm chamber shall not be conveyed to 
Trinidad Bay, but will entirely be infiltrated within the storm 
chamber. See Appendix A, drawings C-5 to C-8, for details.
    Construction Timing and Sequencing:
     Noise-generating construction activities, including 
augering, pile removal, pile placement, and concrete pumping, will only 
be allowed from 7 a.m. to 7 p.m. These hours shall be further 
restricted as necessary in order for Protected Species Observers (PSOs) 
to perform required observations.
    Project Benefits:
    The existing pier has pole lighting that illuminates the water 
surface; the proposed pier has lighting designed to avoid such 
illumination. The existing pier has dark wood and over 200 piles. The 
proposed pier, with 205 piles to be removed and 115 piles to be 
installed and a white concrete construction, will result in less 
shading of nearshore habitat. The project may have benefits to 
environmental resources other than marine mammals. This notice 
describes in detail BMPs that will be implemented for the project. The 
BMPs are focused almost exclusively on protecting water quality, and 
while they may have ancillary benefits to some marine resources such as 
Essential Fish Habitat (EFH), they are not intended to serve as 
monitoring and mitigation measures for adverse effects to marine 
mammals. The only exception might be the ability to further modify 
noise timing restrictions to allow PSOs to perform their duties.
    Additional details regarding the pile-driving and renovation 
operations for the Trinidad Pier Reconstruction Project can be found in 
the Trinidad Rancheria's IHA application and BA, as well as the U.S. 
Army Corps of Engineers (ACOE) and NMFS EA. The IHA application, BA, 
and ACOE and NMFS EA can also be found online at: https://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.

Dates, Duration, and Specific Geographic Area

    The Trinidad Pier Reconstruction Project is located in the city of 
Trinidad, California, Humboldt County, at Township 8N, Range 1W, 
Section 26 (41.05597[deg] North, 124.14741[deg] West) (see Figure 2-1 
of the BA). The construction schedule is from August 1, 2011 to May 1, 
2012, with noise and activity effects requiring an IHA, occurring from 
August 1, 2011 through January 31, 2012.
    Trinidad Bay is a commercial port located between Humboldt Bay and 
Crescent City. The bay contains numerous vessel moorings which include 
permanent commercial vessel anchors as well as 100 moorings that are 
placed for recreational vessel owners (Donahue, 2007). The uplands have 
residential, commercial and recreational land use classifications. The 
Trinidad Pier parcel was owned by the State of California, but was 
granted to the City of Trinidad which leases the tidelands to the Cher-
Ae Heights Indian Community of the Trinidad Rancheria. The parcels to 
be used for the staging area are owned by Trinidad Rancheria, the City 
of Trinidad, and the U.S. Coast Guard.
    Trinidad Bay is a shallow, open bay about 0.8 km (0.5 mi) deep (in 
the southwest-northeast direction) and 1.6 km (1 mi) wide (in the 
northwest-southeast direction). Figure 1 of the IHA application shows 
the whole bay. Generally the bay shelves at a moderate slope to about 
9.1 m (30 ft) depth and then flattens out, with most of the outer bay 
between 9.1 to 15.2 m (30 to 50 ft) deep. Substrates in the bay include 
rock, cobble, gravel and sand. The floor of the bay is irregular with 
some areas of submerged rock. The project area comprises the 0.31 acre 
pier over marine habitats and a staging area (the gravel parking lot 
located west of the pier) covering 0.53 acres of upland area.

Construction Timing and Sequencing

    The project is expected to be completed within nine months 
(approximately six months of loud noise-producing activities). 
Reconstruction of the pier is planned to commence on August 1, 2011 and 
terminate on May 1, 2012. Excluding weekends and holidays, a total of 
217 working days will be available for work during this period. During 
the winter months (November to March) severe weather conditions are 
expected to occur periodically at the project site. The contractor may 
have to halt the

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work during pile installation due to strong winds, large swells, and/or 
heavy precipitation. Construction during the remainder of the year 
should not be impeded by large swells, but may be halted due to strong 
winds or precipitation; however, Trinidad Harbor is a sheltered area 
and does not often experience severe weather that would preclude the 
work. The contractor will work five days per week from 7 a.m. to 7 p.m. 
Should severe weather conditions cause delays in the construction 
schedule, the contractor will work up to seven days per week as needed 
to ensure completion by May 1, 2012.
    Removal of all existing piles and decking and construction of the 
new pier will occur simultaneously. The existing decking and piles will 
be removed and new piles installed from the reconstructed pier. Pile 
bents will be separated 7.6 m (25 ft) apart. Following the installation 
of two successive pile bents, a new precast concrete deck section shall 
be installed. The contractor shall continue in this manner from the 
north end (shore) to south end (water terminus) of the existing pier.
    The contractor is expected to spend approximately six months 
(August through January) on pile removal and installation and the 
remaining three months (February through April) on deck and utilities 
reconstruction. It is estimated that each boring can be lined with a 
pile and excavated within 6 to 8 hours. Pouring of the concrete seals 
is expected to take approximately two hours for each pile. The 
contractor is expected to remove an existing pile and install one new 
steel shell and pour a concrete seal each day, with a total of six to 
eight hours required for the process (i.e., 115 piles to be placed [one 
per day] during 115 days of work or 23 weeks of 5 days each). The final 
pour of the concrete piles is expected to take approximately two hours 
to fill the steel shells and is expected to cure within one week.
    It is expected that reconstruction of one row of piles and bents 
will take one week. Pile and bents will be installed over a 
discontinuous period of approximately 23 weeks. A new pre-cast concrete 
section of decking will be installed following the installation of two 
successive rows of piles and associated bents. The last 3 months will 
be used for pouring of the top layer of the decking and utilities 
construction.

Action Area

    The action area is defined as all areas directly or indirectly 
affected by the proposed action. Direct effects of the action are 
potentially detectable in all lands and aquatic areas within the 
project area, including the staging area. The project would also 
directly affect 7.9 m (26 ft) of the Trinidad Bay shoreline.
    In-air (i.e., sub-aerial) and underwater sound effects would be the 
most laterally extensive effects of the action and thus demarcate the 
limits of the action area. Assuming that underwater sound attenuates at 
a rate of -4.5 dB re 1 [micro]Pa (rms) for each doubling of distance, 
underwater sound from pile-driving (detailed in Section 6 of the BA) 
would elevate noise above 120 dB (rms) up to 800 m (2,625 ft) (the Port 
of Anchorage measured 168 dB re 1 [micro]Pa [rms] at a distance of 20 m 
from a pile, application of the practical spreading model with 4.5 dB 
attenuation for doubling of distance yields 120 dB [rms] at 800 m) 
seaward in all areas on a line-of-sight to the pier (Illingworth & 
Rodkin, 2008). The rationale for use of 120 dB (rms) as a metric is 
detailed in Section 6.6.1 of the BA, but also has a practical value 
because 120 dB (rms) is the lowest threshold currently used to detect 
underwater sound effects to any of the animals discussed in this 
analysis. Actual ambient underwater sound levels are probably quite 
variable in response to sound sources such as wave action and fishing 
vessel traffic. The assumptions regarding in-air and underwater noise 
in the IHA application, BA, and in this notice are generally regarded 
as extremely conservative.
    In-air (or sub-aerial) sound would be generated by equipment used 
during construction; the loudest source of such sound would be 
vibratory pile-driving, which generates a sound intensity of 
approximately 104 dB at 15.2 m (50 ft) (FHWA, 2006). Assuming an 
ambient background noise level of 59 dB, typical of residential 
neighborhoods, and a sound attenuation rate of 7.5 dB (rms) for each 
doubling of distance, the action area for aerial sound would extend 
975.4 m (3,200 ft) in an unobstructed landward direction from the dock. 
The action area would extend farther in a seaward direction, because 
aerial sound attenuates with distance more slowly over water and also 
because ambient noise levels are potentially quieter in that direction. 
Assuming an attenuation rate of 6 dB (rms) for each doubling of 
distance and an ambient marine noise background of 50 dB, the action 
area for above-water effects would extend 7.7 km (4.8 mi) seaward from 
the pier.
    The seaward attenuation rate assumes no environmental damping or 
attenuation and thus is produced by a simple inversion square law. The 
landward attenuation rate assumes a low level of environmental damping 
due to non-forest vegetation, structures, topography, etc. and 
corresponds to the rate recommended by WSDOT (2006) for terrestrial in-
air in non-forest environments. The 59 dB and 50 dB estimates are based 
on EPA (1971), a standard source of data on typical background sound 
levels (in dBA) for various environments. These typical levels were 
revised upwards by approximately 3 dB because the dBA curve down-
weights sound intensity at the lower frequencies typical of vibratory 
pile-driving noise, which is the principal source of noise considered 
in demarcation of an action area for the action. Thus the 59 dB and 50 
dB values represent unweighted estimates of background sound levels.
    The IHA application and BA provide a detailed explanation of the 
Trinidad Pier Reconstruction Project location as well as project 
implementation.
    NMFS outlined the project in a previous notice for the proposed IHA 
(76 FR 28733, May 18, 2011). The activities to be conducted have not 
changed between the proposed IHA notice and this final notice 
announcing the issuance of the IHA. For a more detailed description of 
the authorized action, including reconstruction operations and acoustic 
source specifications, the reader should refer to the proposed IHA 
notice (76 FR 28733, May 18, 2011), the IHA application and associated 
documents referenced above this section.

Comments and Responses

    A notice of proposed IHA was published in the Federal Register on 
May 18, 2011 (76 FR 28733). During the 30-day public comment period, 
NMFS received comments from the Marine Mammal Commission (Commission) 
only. The Commission's comments are online at: https://www.nmfs.noaa.gov/pr/permits/incidental.htm. Following are the 
Commission's comments and NMFS's responses:
    Comment 1: The Commission recommends that the NMFS defer issuance 
of the IHA until it has required the applicant to develop a more 
realistic estimate of the number of harbor seal takes that:
    (1) Accounts for all harbor seal haul-out sites in the area;
    (2) Corrects seal abundance estimates to account for seals in the 
water during the counts;
    (3) Incorporates a more realistic assessment of the portion of 
seals that will enter the water in the Level B harassment zone during 
the proposed construction operations;

[[Page 47162]]

    (4) Includes a reasoned basis for estimating takes that occur from 
in-air construction sound; and
    (5) Is based on a realistic estimate of the time required to remove 
205 wood piles.
    Response: (1) NMFS and Trinidad Rancheria believe that the action 
described does account for all harbor seal haul-out sites in the action 
area. The Commission indicates that they believe that harbor seals 
hauling out within 50 km (31.1 mi) of the site are likely to be present 
in the action area. Goley et al. (2007) state, in literature review, 
that the seals are year-round residents; that they are non-migratory, 
dispersing from a centralized location to forage; and that they exhibit 
high site fidelity, utilizing one to two haul-out sites within their 
range and rarely traveling more than 25 to 50 km (15.5 to 31.1 mi) from 
these haul-outs. If it is not shown that these seals use any other 
haul-outs, then there is no other logical conclusion that that these 
seals must be Trinidad Bay residents. The Commission's proposition that 
seals from elsewhere would enter Trinidad Bay, which already has a 
large resident seal population, to forage, is interesting but not 
corroborated by any data. Moreover, even if true, it is not apparent 
that it affects the analyses in this document, since there is no basis 
for inference about the frequency or duration of such activity.
    Also, the assessment is based upon a personal communication with 
Dawn Goley and Trinidad Rancheria representatives, specifically, a 
telephone conversation on March 23, 2009, when she observed that the 
Humboldt Bay seals show high site fidelity for sandy beach haul-outs, 
whereas the Trinidad Bay and Patrick's Point seals have corresponding 
fidelity for rocky haul-outs. Data supporting this inference was not 
discussed.
    Dawn Goley has stated that it is unknown whether there is 
interchange between the Patrick's Point and Trinidad Bay seals. Data 
that would allow a conclusive determination on this point, such as 
genetic or radio/acoustic tracking studies, have not been gathered. 
However, Goley et al. (2007) do state (page 10) that ``harbor seals 
exhibit high site fidelity, utilizing one to two haul-out sites within 
their range (Sullivan 1980, Pitcher et al., 1981; Stewart et al., 
1994), rarely traveling more than 25 to 50 km from these haul-outs 
(Brown and Mate, 1983; Suryan and Harvey, 1998). Movements between and 
the use of alternate haul-out sites has been attributed to the use of 
alternative foraging areas near their new haul-out site (Thompson et 
al., 1996b; Lowry et al., 2001) and the seasonal use of certain haul-
out sites for pupping and molting (Herder, 1986; Thompson et al., 
1989). Based on the fact that the Palmer's Point and Trinidad Bay haul-
outs are close to each other (9 km or 5.6 mi) compared to the foraging 
areas used by harbor seals, and that the Patrick's Point area is home 
to approximately 1,000 harbor seals (Dawn Goley, pers. comm., March 23, 
2009), a far larger grouping than the one found at Trinidad Bay, and 
given that observations of harbor seals at Trinidad Bay go through 
strong seasonal fluctuations, it is not appropriate to dismiss a 
hypothesis that there is interchange between the two areas. If the 
seals do seasonally vacate Trinidad Bay for alternative foraging 
grounds, then Patrick's Point is their most likely alternative haul-
out.
    It does not follow that the Patrick's Point seals vacate that area 
to forage in Trinidad Bay, as shown by the fact that seal numbers in 
Trinidad Bay decline during the winter; if the area were increasingly 
used by Patrick's Point seals during the winter months, then counts of 
seals at Trinidad Bay would increase. They likely do not. Goley et al. 
(2007) state that harbor seals ``are typically less abundant during the 
winter months as seals tend to spend more time foraging at sea during 
this time.'' In this context ``at sea'' and ``offshore'' are 
interpreted as equivalent and neither term is numerical. The seals are 
not in Trinidad Bay and are therefore offshore.
    (2) The Commission cites a correction factor of 1.54 for harbor 
seals at sea, and contends that this requires a 50% increase in the 
estimate of incident take. NMFS and the Trinidad Rancheria addressed 
the use of this correction factor in the notice of proposed IHA in 
response to previous Commission comments.
    Note that the notice of proposed IHA does not state that harbor 
seals spend 10% of their time in the water, but states that they spend 
10% of their time within the radius of effect. The radius of effect is 
only a small fraction of Trinidad Bay, and only a fraction of the rocks 
that comprise the Indian Beach haul-out of Goley et al. (2007) are 
within that radius of effect.
    Lowry et al. (2008) present a discussion of correction factors. 
They used a correction factor of 1.65, indicating that about 40% of 
seals were hauled-out. They also note that their study was performed at 
a time when the largest possible fraction of seals would likely be 
hauled-out--during the molt, and at local low tides. The proposed work, 
however, would be performed after the molt had concluded. The 
correction factor suggested by the Commission of 1.54 is not 
significantly different from that determined by Lowry et al. (2008) and 
may also be used; this correction factor is therefore used in the 
estimate of potential harbor seal take presented below in this 
document.
    (3) The Commission states that Trinidad Rancheria's action will 
incidentally take marine mammals many kilometers out to sea, where the 
underwater sound generated by the renovation operations would only 
slightly exceed ambient (background) noise levels and would be far less 
audible than other episodic anthropogenic sound sources such as the 
passage of deep-draft vessels. NMFS and the Trinidad Rancheria regard 
the potential for take of animals outside of Trinidad Bay as unlikely 
due to sound attenuation, other background sound sources (e.g., waves, 
wind, rain, etc.), and resident harbor seal habituation to the existing 
marine acoustic environment.
    Analysis regarding the effects of underwater sound was presented in 
the revised IHA application dated July 23, 2010, and presents figures 
indicating the area of potential effect for Level B harassment (see 
Table 4 ``Noise generating activities'' and ``Potential for Biological 
Effects'' section below [Table 4 of the IHA application]). Based on 
this analysis and the foregoing discussion of seal use of Trinidad Bay, 
it is anticipated that behavioral effects could result to all seals 
that were in the water within Trinidad Bay during the portion of the 
day when in-water noise was being generated by pile-removal, augering, 
or pile-driving. As noted earlier, the average number of seals observed 
at the Trinidad Bay haul-out during the time when in-water noise would 
be produced is 36.5 seals, which with a correction factor of 1.54 
indicates a Trinidad seal population at that time of 56.2 or 
approximately 57 individuals, with these seals spending approximately 
35% (1-[36.5/56.2]) of their time in the water.
    As noted above, Goley et al. (2007) state that harbor seals ``are 
typically less abundant during the winter months as seals tend to spend 
more time foraging at sea during this time,'' therefore, only a 
fraction of the seals would actually be present in Trinidad Bay at the 
time of noise produced by the Trinidad Pier Renovation Project. No 
direct measurements are available that would allow estimation of that 
fraction, although it is known that harbor seal abundance in Trinidad 
Bay declines from a summer peak of 67 harbor seals in July to a winter 
minimum of 25 in November (Goley et al., 2007). As

[[Page 47163]]

further noted above, harbor seals exhibit high site fidelity, utilizing 
one to two haul-out sites within their range (Sullivan, 1980; Pitcher 
et al., 1981; Stewart et al., 1994), rarely traveling more than 25 to 
50 km from these haul-outs (Brown and Mate, 1983; Suryan and Harvey, 
1998). If it is assumed that winter foraging Trinidad Bay harbor seals 
travel up to 25 km from their haul-out, then their foraging area covers 
approximately 982 km\2\ (379.2 mi\2\) (a half-circle with a 25 km 
radius), whereas the area of Trinidad Bay is approximately 5 km\2\ (1.9 
mi\2\). This would suggest that fewer than 1% of the seals in the water 
at any given time would be found in Trinidad Bay. This is likely an 
underestimate, as seals bound to and from the haul-out would 
necessarily have to spend some time in passage through the waters of 
Trinidad Bay. However, it does suggest that no more than a very few 
seals are likely to be in the waters of Trinidad Bay at any time when 
underwater noise is being produced from renovation activities. It is 
conservatively estimated that one seal may be exposed during the course 
of any individual pile-removal, augering, or pile-driving event. During 
the total of 164 days when underwater noise would be produced from any 
one of these three activities, there would be 435 noise-producing 
events, or an average of 435/164 = 2.65 events per day, resulting in 
potential exposure of 435 harbor seals over the duration of the planned 
activities.
    (4) The estimation of incidental takes that would occur as a result 
of in-air sound has been analyzed in detail in the IHA application and 
correspondence with the Trinidad Rancheria. Based on in-air noise 
measurements taken during vibratory pile-driving as reported by 
Laughlin (2010), in-air noise production during pile driving at the 
Trinidad Pier will likely be between 87.5 and 96.5 dB re 20 [micro]Pa 
(unweighted). For purposes of the analysis presented below, it is 
assumed that in-air noise from vibratory pile-driving would produce 96 
dB (rms) (unweighted). This noise would be produced during both pile-
removal and pile-placement activities. The augering equipment produces 
slightly less noise at a level of 92 dB (rms) (unweighted). Assuming an 
attenuation rate of 6 dB per doubling of distance, this indicates that 
sound from in-air pile-removal or pile-placement would attenuate to the 
Level B threshold for harbor seals (90 dB) at a distance of 30.5 m (100 
ft). Sound from augering would attenuate to the Level B harassment 
threshold at a distance of approximately 18.3 m (60 ft). There are no 
haul-outs located this close to the pier, but there are anecdotal 
reports of harbor seals surfacing near boats alongside the pier, and it 
is thus possible that occasional exposure could occur. Such an event is 
unlikely because anecdotal reports of harbor seals at the pier are 
associated with seals seeking food from recreational and commercial 
fishing boats, which would no longer use the pier during reconstruction 
activities; thus the pier would no longer function as a foraging 
resource (during construction, fishing boats could unload at the boat 
ramp, which is located several hundred feet from the pier and is 
blocked from the construction area by an intervening headland). It is 
conservatively estimated that seal exposure to in-air sound in excess 
of the Level B harassment threshold could occur during up to 20% of the 
in-air noise producing events, or a total of 87 events during the 
period of construction. Based on this information, NMFS has determined 
that 174 harbor seals may be taken by Level B harassment from exposure 
to in-air sounds produced during the renovation operations. This number 
would be verified by the monitoring data.
    (5) The Trinidad Rancheria states (via the construction contractor) 
that 58 construction days would be adequate to remove 205 wood piles, a 
removal rate of approximately 3.5 piles per day, as stated in 
correspondence and the Trinidad Rancheria's IHA application. There is 
no reason to believe that this is not feasible.
    Comment 2: The Commission recommends that the NMFS defer issuance 
of the IHA until it has reviewed estimates of numbers of takes for 
California sea lions and gray whales during the proposed activities.
    Response: NMFS and Trinidad Rancheria revised and addressed the 
Commission's concerns regarding estimates of numbers of takes for 
harbor seals, California sea lions, and gray whales incidental to the 
specified activities during review by the Commission prior to the 
notice of proposed IHA being published in the Federal Register. NMFS 
and Trinidad Rancheria believe that the take estimation analysis in the 
IHA is accurate and likely overestimates the potential for take in some 
cases as necessary to account for uncertainty. Accordingly, further 
review of the take estimation is unnecessary.
    Comment 3: The Commission recommends that the NMFS defer issuance 
of the IHA until it has re-estimated the distances to various in-water 
and in-air Level A and B harassment thresholds for all three types of 
proposed sound-producing activities and then re-evaluated the proposed 
mitigation and monitoring measures to ensure that the appropriate areas 
are adequately monitored.
    Response: NMFS and Trinidad Rancheria revised and addressed the 
Commission's concerns regarding estimates of distances to various in-
water and in-air Level A and Level B harassment thresholds for all 
three types of sound-producing activities planned as part of the 
Trinidad Pier Reconstruction Project during draft review by the 
Commission prior to the notice of proposed IHA being published in the 
Federal Register. NMFS and Trinidad Rancheria revised the analysis for 
the potential of incidental take in accordance with the Commission's 
recommendations for a harbor seal correction factor, which is discussed 
in Comment 2. The changes are numerically minor, and NMFS and Trinidad 
Rancheria do not find evidence that significant changes are necessary 
to the planned monitoring and reporting plan.
    Comment 4: The Commission recommends that the NMFS defer issuance 
of the IHA until it has required the applicant to verify the associated 
Level A and B harassment zones through calibrated in-situ sound 
measurements and to adjust those zones as appropriate.
    Response: Trinidad Rancheria's current monitoring study 
incorporates this recommendation with regard to underwater sound. The 
expected threshold for Level A harassment and associated exclusion 
zones (EZs) for pinnipeds (i.e., 190 dB) are 0.9 m (3 ft), 0 m (0 ft), 
and 0 m (0 ft) for pile-driving, augering, and pile-removal, 
respectively. The expected threshold for Level A harassment and 
associated EZs for cetaceans (i.e., 180 dB) are 4.9 m (16 ft), 0.3 m (1 
ft), and 21.6 m (71 ft) for pile-driving, augering, and pile-removal, 
respectively. NMFS has not determined Level A harassment thresholds for 
marine mammals for in-air noise; however, Southall et al. (2007) 
recommends 149 dB re 20 [micro]Pa (peak) (flat) as the potential 
threshold for injury from in-air noise for all pinnipeds. Operation of 
a vibratory pile-driver would produce in-air sound intensity of 96 dBA 
at 50 ft. This is the in-air sound level for both pile-removal and 
pile-installation. Operation of the auger would produce in-air sound of 
92 dBA at 15.2 m (50 ft). Using the attenuation rate of 6 dB for each 
doubling of distance, the loudest noise from reconstruction operations 
(i.e., pile-driving) would be 136 dBA at a distance of 0.3 m (10 
inches), so it is not physically possible for a pinniped to be

[[Page 47164]]

exposed to a level of sound that could be potentially injurious, 
especially since a shut-down would occur if any pinniped approaches or 
enters the in-water EZ for Level A harassment. Also, the applicant has 
agreed to perform in-air monitoring to verify the Level B harassment 
zone for in-air sound and is required by NMFS in the IHA.
    Comment 5: The Commission recommends that the NMFS defer issuance 
of the IHA until it has required that shut-down procedures be 
established for both species of pinnipeds.
    Response: Trinidad Rancheria will implement shut-down procedures 
for underwater noise to avoid the potential for Level A harassment 
(injury) for all species of marine mammals during the Trinidad Pier 
Reconstruction Project. NMFS has included a requirement to this effect 
in the IHA. Because in-air sound levels would not reach the injury 
threshold noted by Southall et al. (2007), there would be no need to 
have a requirement for shut-down when pinnipeds are hauled-out.
    Comment 6: The Commission recommends that the NMFS defer issuance 
of the IHA until it has provided further analysis and justification 
regarding the efficacy of visual monitoring for the proposed activities 
and the manner in which the number of takes can be determined 
accurately.
    Response: NMFS believes that the planned visual monitoring program 
will be sufficient to detect, with reasonable certainty, the majority 
of marine mammals within or entering identified EZs. This monitoring, 
along with the required mitigation measures, will result in the least 
practicable impact on the affected species or stocks and will result in 
a negligible impact on the affected species or stocks of marine 
mammals. Also, NMFS expects some animals to avoid areas around the 
reconstruction operations ensonified at the level of the EZ.
    The effectiveness of the monitoring and mitigation measures is 
science-based and is based on the requirement that monitoring and 
mitigation measures be ``practicable.'' NMFS believes that the 
framework for visual monitoring will be effective at spotting the 
species for which take is requested within the immediate action area 
where Level A harassment has the most potential to occur.
    Comment 7: The Commission recommends that the NMFS defer issuance 
of the IHA until it has required the applicant to use 30 min as the 
appropriate clearance time for gray whales before ramp-up activities 
may commence and to use hydrophones for acoustic detection of gray 
whales.
    Response: While passive acoustic monitoring is continuously 
evolving, the technology for underwater detection of marine mammals 
using hydrophones is largely experimental and is prohibitively 
expensive in the context of the capital investment and fundi